As the Yale Law & Policy Review argued in a 2016 essay, voting ought to be considered a form of speech, which would inherently tie it to citizens’ First Amendment freedoms. However, when the country is facing an unprecedented public health crisis, what do voting rights look like in the coronavirus era?
More importantly: how can we collectively protect freedom of speech for all while navigating the political challenges and public health concerns that are likely to remain widespread and controversial leading up to the 2020 American Presidential Election?
Barriers to Voting (Before COVID)
Voter ID laws vary from state to state, but some restrictions have unintended consequences on individuals’ voting rights in some cases. For example, many out-of-state college students are unable to vote at all if they can’t access vote-by-mail from their home states and their college student ID cards aren’t considered sufficient proof of identity to access their ballot at the polls.
Voter ID laws can also negatively impact elderly, low-income and rural voters who have limited access to government identification due to transportation issues, lack of affordability (especially for seniors with fixed incomes), and distance between their homes and offices where they must go in-person to receive an ID card.
Other barriers to voting access that currently exist in the U.S. include:
Is Voting by Mail a Solution?
According to the National Conference of State Legislatures, voting by mail has been shown to increase voter turnout due to its convenience and flexibility (since people don’t need to take off work to go to the polls). As the Military Times points out, voting by mail has been standard practice for U.S. military members and their families since the Civil War, and the practice is used for all elections in Colorado, Hawaii, Oregon, Washington and Utah.
NPR reported on June 4, 2020 that voting by mail is generally a bipartisan issue — 24 states with Democratic governors and 22 states with Republican governors allow some form of mail-in voting currently — and an April 2020 poll found 70% of Americans are in favor of voting by mail.
Multiple high-profile politicians who are publicly opposed to voting-by-mail at the moment have voted by mail themselves in the past, and an analysis of vote-by-mail states in 2016 and 2018 conducted by the nonprofit Electronic Registration Information Center found just 372 possible cases of double-voting or someone voting for a deceased person, out of more than 14.6 million votes cast (this translates to a 0.0025% risk of voter fraud).
In the wake of voters having to wait as long as 6+ hours to access the polls in Georgia’s primaries in 2020 and other fears surrounding coronavirus spread that contributed to disastrous results in Wisconsin’s primary (including sorely understaffed polls and 50+ voters/poll workers who tested positive for COVID-19 after the primaries), voting by mail could be a viable option for protecting citizens’ rights to vote in the 2020 Presidential Election without risking their health or safety in the process.
2020 has become quite an interesting year for First Amendment advocates, and along with major societal unrest — not to mention the ongoing global pandemic — comes greater public interest in legal rights and restrictions, particularly where recording laws are concerned.
To determine what your rights are in terms of who, what, where, and when you record, let’s examine the present laws, current events, and notable examples of public recording laws:
Many aspects of recording laws are up to individual states to determine, which makes it difficult to analyze 50 different approaches to public privacy. However, you can generally record in public as long as there’s not an expectation of privacy.
Is there something you shouldn’t record, even though you can? As Consumer Reports points out, you want to avoid videotaping peaceful protesters, which could potentially make them targets later on. However, you should record people breaking the law (as long as it’s safe to do so) because footage could provide valuable proof in a court of law in the future.
So what about location? In 2019, the judge for Sheets v. City of Punta Gorda upheld an earlier court’s decision pertaining to recording in government buildings. Whereas public streets are considered “traditional public fora” (for First Amendment purposes), government buildings are considered “nonpublic fora” where speech may be somewhat restricted in the prohibition of recording, for instance.
Recording Police Activity
Some people mistakenly believe you’re not allowed to record the police, but the Electronic Frontier Foundation correctly explains how this is guaranteed by the First Amendment (even if an officer tells you to stop recording, as one did to an Uber driver in 2017 without realizing the driver was a criminal defense attorney who very much understood his rights; the Sheriff’s Department involved in the matter in North Carolina responded, “not only does the Sheriff agree that it is legal to record encounters, he invites citizens to do so”).
The Municipal Research and Services Center also points out:
Citizens lawfully present at the scene of police activity may express verbal criticism—even profane and abusive criticism—towards police officers carrying out their duties so long as the citizens do not physically touch the officers or issue threatening statements or movements.
In other words, the First Amendment generally protects protesters’ rights in police encounters, so long as they remain nonviolent in their actions and nonthreatening in their language.
Without video footage of George Floyd’s death, there might have never been such widespread protests and murder/manslaughter charges against the police officers involved. Without video footage of Buffalo, NY police pushing over a 75 year-old man and leaving him to bleed on the ground, the officers might not have been investigated and suspended without pay.
There is an entire Google Spreadsheet with videos of police brutality during the George Floyd protests, which would not have been possible if people didn’t record police activity at protests. For more information on public recording laws and tips for filming protests and suspected police abuse, check out Witness.org’s helpful guide.
Freedom of assembly has arguably been one of the more under-appreciated rights outlined in the First Amendment of the Constitution, but it’s certainly on full display in protests around the world in 2020.
As the Library of Congress explained,
The Supreme Court of the United States has held that the First Amendment protects the right to conduct a peaceful public assembly. The right to assemble is not, however, absolute. Government officials cannot simply prohibit a public assembly in their own discretion, but the government can impose restrictions on the time, place, and manner of peaceful assembly, provided that constitutional safeguards are met. Time, place, and manner restrictions are permissible so long as they “are justified without reference to the content of the regulated speech, . . . are narrowly tailored to serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.”
Around the world, the freedom to peacefully assemble is recognized in a majority of countries, though Sweden and the U.S. require a permit or some form of authorization for organized protests, whereas other countries typically require only advance notification.
Given the importance of protests and the public health dilemmas associated with large gatherings of people in the year 2020, let’s explore some of the common myths and misconceptions surrounding Americans’ right to peacefully assemble in public:
Myth #1: “You Always Need a Permit”
The real answer is much more complicated, as the ACLU points out. You do not need a permit if you’re planning to march in a way that doesn’t block pedestrian or automotive traffic (e.g., smaller groups marching on sidewalks), but you’ll need a permit if you’re planning a larger protest requiring potential street shutdowns and/or audio equipment for a crowded rally.
Protest permits typically cannot be denied simply due to controversial or unpopular opinions expressed by protesters, though public safety has been cited as a common reason for dispersing protests (especially during a pandemic). There may be a fee involved for the permit, but the ACLU further explains that you should be able to get the fee waived if it’s too cost-prohibitive.
Myth #2: “You Can’t Record Certain Public Spaces and Figures”
States have different laws about using an audio/visual recording device in public places, but there are general legal protections for recording in public, including:
- Police officers cannot demand that you stop recording and/or delete recordings or photos on your phone unless you are genuinely interfering with their law enforcement duties.
- You are able to record people in public unless there’s a “reasonable expectation of privacy.”
- There may be a difference between types of content that are protected, depending on your state (visual is typically legally protected, but audio might be more of an issue).
Myth #3: “Peaceful Protests Don’t Lead to Real Change”
As Global Citizen pointed out, there have been many nonviolent protests that have spurred change around the world, with one of the most fascinating example being how Estonians collectively sang their way out of the Soviet Union beginning with the “Singing Revolution” in 1988.
2020 is truly a historical moment for the United States, and we are closely watching the many major news stories pertaining to civic activism and First Amendment rights. Time will tell what societal changes arise from the George Floyd protests and other legal battles over civic liberties like publicly congregating for protests or religious services.
In the meantime, First Amendment Voice has you covered with the latest updates on the protests, free speech laws, state of religious freedom in the midst of a public health crisis, and so much more.
The First Amendment guarantees Americans’ rights to freedom of religious expression and practice, but does the First Amendment’s protections go as far as ensuring people are legally permitted to congregate in-person, particularly during a public health crisis?
This question remains to be concretely answered by the courts, but we’ve already seen several religious institutions challenging states’ stay-at-home orders and/or social distancing regulations by either filing a lawsuit or opening their doors to congregants without the state’s permission. In one tragic incident, a pastor dismissed the pandemic as “hysteria” and later died of Covid-19 after contracting it at Mardi Gras.
The problem with in-person services during a pandemic, Vanderbilt University’s infectious disease expert William Schaffner said in an interview with Business Insider, is that “people congregate, hug each other, exchange stories, and thank you very much, the virus is going to go from me to you.”
Of course, as the New York Times points out, a vast majority of religious leaders and institutions are taking the pandemic seriously by hosting virtual services, connecting with congregants over video conferencing apps like Zoom, leading remote reading groups, and seeking out ways to positively impact their communities during this time.
So if most other churches, synagogues, mosques, temples and religious institutions are capable of delivering their services remotely, why are there so many First Amendment issues coming up in the media and courts? Let’s examine what’s going on (as of June 2020):
Court Challenges Against States & Governors
Religious leaders from across the country have varied in their responses to state-imposed restrictions on large group gatherings, but those that have engaged in legal battles with state governors haven’t been too successful in court so far.
For instance, South Bay United Pentecostal Church and its leader Bishop Arthur Hodges filed a request to exempt their organization from California Governor Gavin Newsom’s emergency state-at-home orders. The request was declined in a 2-1 decision by the 9th Circuit Court of Appeals late on May 24, with the dissenting judge – President Trump appointee Daniel Collins – writing,
By explicitly and categorically assigning all in-person ‘religious services’ to a future Phase 3 — without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services — the State’s Reopening Plan undeniably ‘discriminate[s] on its face’ against ‘religious conduct.’
Similar challenges have occurred in states like Oregon, where a judge briefly overturned Governor Kate Brown’s stay-at-home orders (before the state successfully requested a reinstatement of the restrictions from their Supreme Court a few hours later). Notably in the case of Oregon, most of the legal challenges have come from religious groups but the actual legal challenge wasn’t grounded in First Amendment principles as you might expect; the challenge arose from Oregon state laws requiring a governor to get Legislature permission for extending emergency orders beyond a 28-day timeframe.
There are also several other examples of religious leaders and institutions in nearly every other state legally challenging or civilly protesting their state-imposed social distancing and/or shelter-in-place restrictions. Time will tell how those legal challenges hold up; it may take a U.S. Supreme Court decision on this matter before a true precedent is set.
International Religious Services During Covid-19
Places of worship around the world have also been struggling to cope with changes imposed by their nation’s leadership, not to mention adapting to the public’s preferences for virtual or in-person services.
Several megachurches and other large religious institutions have been hotspots for coronavirus outbreaks (where the “patient zero” is often referred to as a “superspreader”), though it’s not always limited to large institutions of faith, as these case studies demonstrate.
The problem with “superspreaders” is that they may be responsible for as many as 80% of Covid-19 cases, and resuming religious services too early without rigorous testing and contact tracing efforts could lead to a spike in cases in vulnerable communities.
In Germany for instance, a single church service on May 10 was linked to over 100 new cases of coronavirus within two weeks of the service. Another example from South Korea in February found a woman infected at least 40 people at her church after she refused to get tested for coronavirus (she had a fever but hadn’t traveled abroad).
Eid is also a potential superspreader concern for many Muslim communities and their leaders, as we’ve seen from the Muslim Judicial Council of South Africa’s statement requesting Muslims to celebrate Eid at home instead of prayers and cemetery ceremonies with friends and family.
What’s Next for the First Amendment and Our “New Normal”?
We’ll have to wait for a decision from the U.S. Supreme Court before we can determine whether prohibiting in-person gatherings legitimately constitutes a violation of citizens’ First Amendment rights to freedom of religious practice and assembly.
While there are a few examples of religious institutions and their leaders seemingly not prioritizing public health by demanding a swift return to normal, in-person gatherings, it’s important to remember that a vast majority of spiritual and religious leaders are doing everything they can to keep their members safe (some institutions have already announced they won’t hold in-person services until 2021 at the earliest).
It’s not easy balancing public health concerns with religious liberties, so this will likely remain a controversial issue in our public discourse for many months (or even years) to come.
Censorship will always be a major concern for any First Amendment advocate, but it’s been especially alarming to witness the number (and the restrictiveness) of censorship policies rapidly scaling up around the world during the Covid-19 pandemic.
While China is a prominent censor of information online, Western countries aren’t immune from trampling on citizens’ rights to freedom of expression, press, religion, petition and assembly, either. So how are governments and major tech companies responding to the pandemic? Let’s explore what censorship is currently going on through social media and examine how Covid-19 might impact our First Amendment rights in the future.
Combating the Spread of Misinformation
Every single social media platform has been struggling to combat the spread of public health misinformation since the start of the outbreak. Arguably they struggled prior to the onset of Covid-19, but coronavirus hit especially hard with so much political division across the country, unprecedented government actions around the world, and increasingly tense relations with China.
Not to mention the millions of people at home, unemployed, with suddenly plenty of opportunities to browse and share potentially dubious information with their online networks. Just as grocery stores were slammed with overwhelming, unexpected toilet paper demand in March, social media sites like Facebook, Twitter, YouTube, TikTok, Instagram, and Reddit were flooded with misinformation and couldn’t fully snuff out the spread right away.
Several of them are hustling to update their terms of service regarding the type of information shared on their platforms – especially during a public health crisis – but not having a rigorous policy already in-place prior to Covid-19 has led to rampant accusations of wrongful censorship and biased assessments of posts. It’ll likely remain an issue for many months/years to come, especially when we consider the freedom of assembly implications involved here.
Selectively Censoring Protests?
An April 20, 2020 article from Vox highlighted how Facebook was taking down some anti-lockdown protest event pages, but not all. Vox reported that a Facebook spokesperson informed them, “Unless government prohibits the event during this time, we allow it to be organized on Facebook. For this same reason, events that defy government’s guidance on social distancing aren’t allowed on Facebook.”
In other words, Facebook has been allowing anti-quarantine protests to continue organizing on its platform in areas where social distancing laws do not forbid it but users in cities, counties and states with some form of shelter-in-place order will likely get their event pages deleted to comply with local laws.
The Future of Online Censorship
We could write several books just on the subject of how the pandemic might influence First Amendment related issues like censorship and freedom of expression in the short- and long-term future. However, we’ll conclude for now with a broad overview of the aspects of life in civil society that are most likely to change after Covid-19 and a related First Amendment question we’ll be paying close attention to in the coming years:
- Masks and Freedom of Expression: Religious individuals have the right to don religiously meaningful garb (e.g., hijab or nun’s habit) and there are certain types of clothing that aren’t allowed in some public spaces. So what does this mean for the future of masks in our society? Would a law requiring people to wear masks when out in public violate their rights to freedom of self-expression?
- Freedom of Assembly During Quarantine: When in conflict, should the government prefer to protect public health or continue guaranteeing their relatively unrestricted rights to freedom of assembly? If the government must balance the two priorities, what would be an appropriate penalty for quarantine violators that doesn’t infringe on their First Amendment rights?
- Threats Against Journalists: There have been several reports from around the world about journalists facing threats or even violence in response to their attempts to hold power to account by accurately investigating and reporting public health information (e.g., infection rates, areas affected, lack of leadership, etc.). How can journalists safely fulfill their obligation to inform the public if the information might shine a negative light on their political leaders (and thus, they may attempt to silence reporters)?
- Freedom of Religion: If you haven’t already, be sure to check out our in-depth analysis of how religious institutions are adapting to what may become their “new normal” after Covid-19.
What may have seemed unimaginable in the United States not long ago is now a reality. Cities are going on lockdown. Businesses and places of worship are closing their doors. In most areas, people are being instructed to practice “social distancing,” which means staying at least six feet away from others and even staying at home. This is all thanks to COVID-19, a rapidly-spreading virus that has been deadly to the elderly and those with immune disorders.
Although social distancing is important, it can be challenging. Loneliness is rough on your mental and physical health, and studies have shown it can even weaken your immune system. That’s why it’s important to remember that social distancing is different from loneliness and self-isolation. Just because you’re staying at home doesn’t mean you can’t make an effort to maintain relationships with your family, friends and communities. Here are a few ways you can stay social without being physically near other people.
Phone calls and video chat. This may seem obvious, but we really take phone calls and video chat for granted sometimes. Step away from texting and social media and have an actual conversation. Many people are making use of Marco Polo, Skype and Google Hangouts. If you have a large family, you could create a large group message and family members to keep tabs on each other.
Neighborhood events. Social distancing has given us a lot more time to be creative. It’s still possible to hold social events without being in close contact. For instance, this neighborhood hosted a Zumba class that was possible because everyone stayed far away from each other. Some neighborhoods have hosted “chalk your walk” events, inviting neighbors to draw encouraging messages on their sidewalks for walkers to enjoy. You also could invite neighbors to hang fun pictures in their windows.
Get together with a friend, social distancing style. The CDC recommends staying six feet away from others, not avoiding them completely. If your community isn’t on lock down, you can still spend time with a friend while maintaining social boundaries. Arrange for a car lunch date, where you each both bring a sack lunch, park near each other and talk from a distance. Go on a walk together and stay a safe distance apart. Go on a walk around your neighborhood and shout hello to friends and neighbors doing yard work.
How do you plan to stay in touch with friends and family during this crisis?